People v. Irvin
| Decision Date | 07 August 1968 |
| Docket Number | Cr. 6691 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Frank IRVIN and Dennis Gary Portoian, Defendants and Appellants. |
Rippen, Hom & Cropper, Eugene Rippen, San Jose, for appellants.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael Buzzell, Deputy Attys. Gen., San Francisco, for respondent.
Following a trial by jury, defendants Irvin and Portoian were each found guilty of burglary of the first degree in violation of section 459 of the Penal Code, and the latter was further found guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code. Portoian, who had admitted prior convictions for burglary of the second degree and for possession of marijuana, was sentenced to concurrent terms in the state prison. Irvin was admitted to probation upon the condition, among others, that he serve four months in the county jail. Execution of Portoian's sentence and of the order admitting Irvin to probation was suspended so that each could perfect an appeal and arrange for release on bail pending determination of the appeal. The defendants filed a joint notice of appeal within the time provided for in the stay of execution and presumably posted bail.
The defendants jointly contend that they were illegally arrested by the police and that the fruits of the arrest were erroneously admitted in evidence against them; that evidence of the victim's identification of the defendants was erroneously admitted, or in any event admitted without a finding by the court that the procedure was fair and reasonable, and that the legally admissable evidence is insufficient to sustain the convictions. Portoian additionally contends that section 11530 of the Health and Safety Code is unconstitutional, that there is no evidence to show that he had knowledge of the narcotic character of marijuana, and that he was prejudiced by the admission of evidence of an extrajudicial statement of his codefendant. Irvin contends he was prejudiced because his codefendant stipulated in open court that he, Portoian, knew marijuana when he saw it. No merit is found in defendants' contentions.
At 2:30 a.m. on December 22, 1966, Mrs. Sarah Le Fievre was awakened by the presence of someone in her bedroom. She shook her husband, who was sleeping next to her, and said, 'Jack, there is someone in our house.' A dark figure ran out of the room.
Mr. Le Fievre awakened, and saw something moving fast. He jumped our of bed, ran to the front door of the apartment, and stopped some three feet outside. He observed two men running on the driveway. The man closest to him was approximately five feet ten, weighed about 160 pounds, and was wearing a corduroy coat. The other man was taller and slimmer. After dressing quickly, Mr. Le Fievre unsuccessfully attempted to pursue the two men. Mrs. Le Fievre called the Pacifica police.
While in the apartment, the burglars took Mr. Le Fievre's wristwatch and Mrs. Le Fievre's black patent leather handbag. The handbag contained a pink wallet, with some $8, a checkbook, a savings account passbook, some gasoline credit cards, a Bank-Americard, a social security credit card and a library card.
Officer Towne, of the Pacifica police, was on patrol in a marked vehicle when he received a radio report that a burglary had occurred at the Le Fievre apartment. He proceeded to the address given, 1383 Adobe Street, in Pacifica. While en route he received a second radio broadcast that the burglary had been committed by He approached the area via Linda Mar Boulevard, turned on Adobe, passed the scene of the burglary, and cruised in the vicinity of Rosita, and the five-block area surrounding 1383 Adobe. The officer did not see any individuals on the street, or any vehicles in motion, other than police vehicles. He then returned to the scene of the burglary, got out of his car, and was starting to go to the apartment, when a vehicle, with its headlights on 'came westbound on Rosita, and turned northbound on Adobe' passing the officer. Towne, in observing the automobile saw that it contained two white male adults, one of whom he thought was wearing a brown jacket. The officer followed the car, and stopped it four-tenths of a mile later on Linda Mar Boulevard. The evidence concerning the events which ensued is referred to below.
At approximately 4 a.m. the same morning Mr. Le Fievre went to the Pacifica police station to view the defendants. The evidence relating to his identification testimony is discussed in connection with defendants' present attack on the procedure followed.
On his way home from the police station, Le Fievre found his wife's pink wallet and a gasoline credit card in the westbound lane at Linda Mar, about two-tenths of a mile from his house.
Defendant Irvin testified that he and Portoian were in the area because Portoian had heard about a party. Defendant Portoian did not testify.
Officer Towne, who stopped the vehicle in which the defendants were riding, testified that defendant Portoian, who was driving, got out of the vehicle and walked back along the left side of the car toward him. Portoian was so close to the side of the car, that the left side of his jacket, which was open and obscuring his hand, brushed against the vehicle. About two steps past the left rear wheel of the vehicle, Portoian 'stopped, turned around and looked under the * * * vehicle.' He then bent down, pecked up a black patent leather purse, and brought it to Towne saying something like 'Look what I found.' Although the purse was lying in the path of the rear wheel, it did not appear to be damaged, or to have been run over by a tire. Towne examined the purse, and found a checkbook with personalized checks, bearing the Le Fievre's name. The defendants were placed under arrest, and removed from the scene by other officers, who had responded to Towne's call. As Towne walked past the left rear wheel of the defendants' car, which had been left at the scene for impounding, he noticed a brown paper bag. The bag was very round, and it also did not appear to have been run over or damaged. The bag contained marijuana.
The black patent leather purse had been admitted into evidence without objection when it was identified by Mrs. Le Fievre as having been taken from her home on the morning of the burglary. No objection was interposed to the officer's narration concerning the discovery of the purse and the subsequent search of its contents. A brown corduroy jacket had previously been marked for identification in connection with Mr. Le Fievre's testimony relating his observations. The officer testified without objection that it appeared to be the one he observed on Portoian when he stopped him. An objection to the admission in evidence of the jacket on the grounds that it was not sufficiently identified as the one taken from Portoian by the officers was then sustained, but subsequently overruled, and the jacket was ultimately received in evidence. The brown paper bag was received in evidence over defendants' objection that there was no evidence to show that defendants, or either of them, ever had possession of the bag and its contents, or if they did that such possession was with knowledge of the character of its contents.
Furthermore, the evidence fails to disclose any search. 'A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way; the mere looking at that which is open to view is not a search. (People v. Spicer, 163 Cal.App.2d 678, 683, 329 P.2d 917 * * '
Defendants concede that under suspicious circumstances officers have the right to stop a vehicle for investigation. (People v. Mickelson (1963) 59 Cal.2d 448, 450--451, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Wigginton (1967) 254 A.C.A. 353, 356, 62 S.Ct. 104; People v. Kraps (1965) 238 Cal.App.2d 675, 678, 48 Cal.Rptr. 89; People v. Lamberson, supra, 235 Cal.App.2d 856, 858, 45 Cal.Rptr. 563; Wilson v. Porter, supra, 361 F.2d 412, 415.) Their contention that there was no suspicious or unusual circumstance justifying such a stop (see People v. Wigginton, supra; People v. Kraps, supra; and Wilson v. Porter, supra) borders on the frivolous. The early morning hours, the dearth of traffic in the residential neighborhood, the nature of the coat worn by the driver, 1 and the presence of two men in the car were all circumstances which called for further investigation in connection with the recent burglary. (See People v. Gardner (1967) 252 Cal.App.2d 320, 325--326, 60 Cal.Rptr. 321.)
The officer was warranted in inferring that the purse had been dropped by...
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